Paui R. L.ePage STATE OF MAINE

OFFiCE OF THE GOVERNOR

1 STATE HOUSE STATION AUGUSTA, MAlNE

0433J-0001

February 11, 2015

Mr. H. Curtis Spalding, Administrator USEPA REGION 1 - New England 5 Post Office Square Mail Code: ORA Boston, MA 02109-3912

Dear Administrator Spalding:

CommissionerAho has apprised me of U.S. EPA's recent decision regarding Maine's water quality standards, which comes afteryour longstanding refusal to recognize that Maine has the authority to regulate all waters in our state, as the First Circuit Court of Appeals emphatically ruled in the Maine v. Johnson decision. Your refusal to recognize Maine'sjurisdiction forwell over a decadeforced the State to initiate litigation against EPA again last summer requesting the court ordered EPA to perform its statutory duty and act on our outstanding water quality standard submissions. During your recent discussion with CommissionerAho, you stated that this decision was discussed within EPA, including with Administrator McCarthy. While we are pleased you finally reached the same conclusion thatthe First Circuit did manyyears ago, it is clearfrom the substance ofthe decision that it is nothing more than retribution against Maine DEP for being willing to take a stand against U.S. EPA and demand that your agency perform the basicfunctions that the law requires. Your decision to disapprove major categories of Maine's standards, and to call into question certain other standards that were not
even before your agency for decision, reads more like an elaborate and results-oriented rationalization than it does an objective assessment ofthe merits.

Wewill ofcourse continue to pursue all legal options available to the State, but in the meantime, it is importantfor me to be abundantly clear: Maine has the authority to regulate the water in ourstate and we will continue to do so according to sound science,
our laws and our regulations. Your reprisal undermines decades ofgood, quality technical work undertaken by our scientists, seems to renege on earlier approvals which you nowdeem "disapproved" by administrative fiat, creates extraordinary uncertainty in the regulatory process, and raises significant questions regarding which human health and environmental criteria apply to which water bodies. The conclusion you are reaching yet again is clearly contraryto Maine's Implementing Act, the Indian Land Claims SettlementAct and to the Maine v. Johnson decision as well.

Your decision states that Maine DEP is to revise years of scientificwork, butyet you do notand presumably cannot explain howthe revisions are to be undertaken, orwhat standards are to apply in the meantime. Nordoyou explain how Maine DEP is to completeall ofthis work within 90 days, which is plainly not possible. Again, let me be very clear: Maine DEP will not be revising its work in an attemptto meetsome unknown standard to meetyour deadline of 90 days afteryour agency defied federal lawfor more**~~~**

# (~ v**l'l!l~** i HJ0." 1\fCY(_LCll i'APLI< PHONE: (20?) 287-1'331 (Voice) 888-577-6690 (TTY) FAX: (207) :ZR?-1034 www.maine.govthan 12 years before acting on ourwater quality standard submissions. Your demand thatwe do so, againstthe backdrop of U.S. EPA's recalcitrance, is outrageous. I intend to make sure the record ofyour agency's handling ofthis mattergetsthe public airing that it sojustly deserves.
Further, in your discussion with CommissionerAho, yourstaff noted they had been engaged in scientific and technical analysis related to the implications ofthe decisions in your letter, butwhen the Commissioner asked ifyou would share this work with Maine DEP, the story changed, and no such analysis orsupporting scientific data appeared to be available. This raises troubling questions aboutthe transparency of your process- questions that have surrounded your agency since it was revealed that you entered into awritten confidentiality agreementwith a Maine Tribe governing sorne ofthe same issues addressed in your recent decision.

You have placed Maine's regulated community and all Maine's stakeholders in water quality issues in great uncertainty. You have also undermined decades ofsound work undertaken by the Maine DEP's scientists. This now makes us all seriously question the value ofthe delegated water program and whetherthe costs to Maine's dischargers, the State and to our citizens outweigh the value we are receiving from this delegation. I question whetherwe can even considerthis a delegation in light ofyour sweeping repeal of dozens of carefully considered standards that your agency had foryears fully embraced and itselfapplied in hundreds of licensing proceedings before this week's abrupt reversal. All ofthis calls into question howyou are exercising the circumscribed authoritythat Congress created forthe U.S. EPA underthe Clean WaterAct.

While I am surethat these issues will continue to be discussed between you and CommissionerAho and herstaff, Maine remains committed to protecting ourwaters based on sound science, our laws and our regulations. That remains ourfocus, with or without your agency's cooperation.

Sincerely,

# ~-~ Paul R. LePage Governor

cc: Commissioner Patricia Aho, Maine DEP Susan M. Collins, US Senate Angus S. King, US Senate Bruce L .Poliquin, House of Representatives Chellie M. Pingree, House of Representatives